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Research Roundup 3: The Research Awakens

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Read me, inquisitive reader. You’re my only hope…

Research is very much like the force: Often times misunderstood, most who try to wield it can’t end up doing much with it, but the few who take the time to understand it can wield its vast power to great effect – for good or evil…

We’ve been busy scouring the known and unknown universe – from Tatooine to Naboo – to smuggle you the finest research not involving Midichlorians. Whether you want to compare Bitcoin to regulated currency, examine the regulatory conditions of internet connection, look at a two-sided market approach to competition and regulation of crowd-funding platforms, create a secondary market for digital goods, compare different academic profile services, or want to know more about 3D printing as it relates to copyright law, these are the papers you’ve been looking for.

We also feel compelled to remind you that while these research papers are interesting, they are not canon. We neither necessarily agree nor disagree with any of the conclusions.

 

 

TOWARD A “DIGITAL TRANSFER DOCTRINE”?: THE FIRST SALE DOCTRINE IN THE DIGITAL ERA

The “first sale doctrine” allows consumers to resell physical goods they have purchased. Reselling physical goods presented no copyright problems because, for all intents and purposes, they cannot be copied perfectly and once a physical good is sold, the original owner no longer actively benefits from its use. Digital goods, however, are different in that consumers generally buy a license to use a copy of the work and cannot resell them. The courts ruled in Capitol Records, LLC v. ReDigi Inc that “the first sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce…” and that because digital goods are reproductions of original works they are not covered by the first sale doctrine. As a result, consumers do not have the right to resell digital goods. Often, copyright holders enforce non-transference by including Digital Rights Management technology on the digital goods they sell.

The ReDigi ruling holds that transferring a digital good, even if the original copy were deleted, is not the same as selling the original copy. In contrast, section 117 of the Copyright Act allows for software to be copied as long as it is an ‘essential step’ in using the software (i.e. installing software on one’s computer from a CD or downloading it from the internet technically constitutes copying software). The author concludes that this doctrine could be extended to all digital goods to help enable a first sale doctrine.

There have been unsuccessful legislative attempts to create secondary markets for digital goods, most notably the BALANCE Act. The author posits that a viable alternative to creating a first sale doctrine for digital goods would create a first license doctrine that would allow copyright holders to benefit when a digital work is transferred.

 

AUTHOR WRITTEN ABSTRACTS:

The Legal Status of Online Currencies – Are Bitcoins the Future?

Bollen, Rhys, The Legal Status of Online Currencies – Are Bitcoins the Future?. Melbourne Business School, 2016 Financial Institutions, Regulation & Corporate Governance (FIRCG) Conference

This paper examines the legal and regulatory status of virtual currencies. Virtual currencies like Bitcoin, often described as a decentralized virtual currency, are a form of money and a payment system. However, being decentralized, it has no central issuer, authority or register-keeper. Bitcoin is unique, not because it is a virtual currency, but because it is proof of concept of a decentralized non-issued electronic currency. Regulation of virtual currencies is at an early stage. Most regulatory regimes are not well designed to cater for this type of payment system. However, creating and protecting trust is a crucial issue in the regulation and public acceptance of new payment services. It is generally accepted that adequate regulation is a key pre-cursor to consumer acceptance of new payment methods, including mobile banking and payments.

 

Exploring the Regulatory Conditions of Internet Interconnection

Meier-Hahn, Uta, Exploring the Regulatory Conditions of Internet Interconnection – A Survey Among Internet Interconnection Professionals (March 1, 2016). HIIG Discussion Paper Series No. 2016-03.

Internet interconnection has generally not been subject to formal regulation. However, local public regulation is starting to emerge – be it through disclosure regulations, mandatory peering or licensing terms. The networked nature of the internet means that local rules may acquire a global scope. This report presents an initial overview about what kind of formal regulation networkers encounter in their professional practice and provides insights into how this regulation affects internet connectivity.

 

Competition and Regulation of Crowdfunding Platforms: a Two-sided Market Approach

Viotto da Cruz, Jordana, Competition and Regulation of Crowdfunding Platforms: A Two-Sided Market Approach (2015). Communications & Strategies, 99, p. 33-50.

The present paper analyses competition in the crowdfunding market in the light of the theory of two-sided markets, with the objective to understand the strategies used by platforms in this nascent industry. It also discusses the experience of policymakers in selected countries in trying to address concerns related to information asymmetries in this new environment

 

Toward a “Digital Transfer Doctrine”?: The First Sale Doctrine in the Digital Era

Reis, Sarah, Toward a ‘Digital Transfer Doctrine’? The First Sale Doctrine in the Digital Era (March 1, 2015). Northwestern University Law Review, Vol. 109, No. 1, 2015.

The first sale doctrine in copyright law allows a person who owns a copy of a copyrighted work to sell, lend, or give away the copy to someone else. An owner of a copy of a copyrighted work can take advantage of the first sale doctrine, but a licensee cannot. In today’s digital environment, people are increasingly purchasing digital music files and e-books instead of CDs and physical books. Customers often mistakenly believe they become owners of the digital content they purchase when in actuality they merely become licensees most of the time. Licensing agreements impose use restrictions on digital content. As licensees, customers are unable to invoke the first sale doctrine and legally resell or transfer their digital content to others. This Note explores the feasibility of applying the first sale doctrine to digital content and concludes that a better solution would be to operate a digital secondary marketplace outside the scope of the first sale doctrine. This solution is referred to as a “digital transfer doctrine.” A digital secondary marketplace that provides a portion of revenues from secondary sales to the copyright holders most effectively balances the interests of both consumers and copyright holders.

 

The Role of Ego in Academic Profile Services: Comparing Google Scholar, ResearchGate, Mendeley, and ResearcherID

 Martín-Martín, Alberto and Orduna-Malea, Enrique and Delgado López-Cózar, Emilio, The Role of Ego in Academic Profile Services: Comparing Google Scholar, ResearchGate, Mendeley, and ResearcherID (March 4, 2016).

Academic profiling services are a pervasive feature of scholarly life. Alberto Martín-Martín, Enrique Orduna-Malea and Emilio Delgado López-Cózar discuss the advantages and disadvantages of major profile platforms and look at the role of ego in how these services are built and used. Scholars validate these services by using them and should be aware that the portraits shown in these platforms depend to a great extent on the characteristics of the “mirrors” themselves.

 

Possession is 99% of the Law: 3D Printing, Public Domain Cultural Artifacts and Copyright

Cronin, Charles Patrick Desmond, Possession is 99% of the Law: 3D Printing, Public Domain Cultural Artifacts & Copyright (March 8, 2016). USC Law Legal Studies Paper No. 16-13.

Since time immemorial there has been an uneasy rapport between those who own tangible cultural artifacts, and those who wish to examine them, and record, analyze, and reproduce the information they embody. Owners of physical objects – museums, libraries, individuals, etc. – are caught between a desire to enhance the prestige and renown of these artifacts through public display, and a fear that non-owners might capitalize without their authorization, or any apparent benefit to them, upon their access to these works.

Tangible cultural artifacts are akin to trade secrets in that once they are revealed it is difficult to control, by law or other means, further dissemination of their information. Just as one can legally reverse engineer and reproduce the secret formula of a fragrance or an unpatented pharmaceutical, one may legitimately copy and reproduce for virtually any purpose public domain old master paintings, classical sculptures, etc., that are owned by another.

Owners of public domain artifacts attempt to overcome their inability to rely upon copyright to capitalize financially on reproductions through physical, technological and legal measures. As digital capture and reproduction technologies have advanced, and become so prevalent, some owners have resorted to restrictive physical and technological measures like smartphone prohibitions and watermarks. Increasingly, however, owners rely on contracts, and specifically licensing agreements, to suppress unauthorized replication of public domain works that they have displayed publically.

Until recently, owners have been concerned mainly about unauthorized – and more pointedly, uncompensated – copying and reproduction of essentially two-dimensional works: prints, drawings, paintings, photographs, etc. Since the advent of photography one can legally and inexpensively create copies of public domain works that convey most of the information contained in the originals. Using digital technologies – laser scanning and additive printing and subtractive manufacture – today one can create copies that most observers would find indistinguishable from the originals.

3D scanning and printing technologies also make it possible to replicate sculptural works and myriad other three-dimensional artifacts. Hitherto, these works had been relatively immune to unauthorized reproduction. A reproduction of a statue, for instance, involved a laborious process demanding direct physical contact with the original work. A 3D scan of the same statue might be obtained in less than an hour, and could be used to produce an infinite number of replicas of it. It is even possible to create 3D scans using still photographs of a work taken from various angles – an encouraging possibility, for example, to those endeavoring to restore the Buddhas of Bamiyan that the Taliban destroyed.

The potential loss of control over the replication of public domain artifacts posed by 3D replication has disconcerted the owners of these objects, and led to arguably overreaching efforts to suppress the unauthorized use of this technology in connection with these objects.

Stanford University, for instance, has permitted a former faculty member to arrogate sole control over access to the 3D data of a University-sponsored project to scan Michelangelo’s David. Access the data is given only to those whose credentials and objectives this former faculty member condones. Prohibitions on “tasteless” and commercial uses by those given access purportedly stem from an agreement struck between the former faculty member and Italian authorities.

The Getty recently sponsored Power & Pathos, an exhibition of Hellenic Era bronzes that included The Getty’s Victorious Athlete. The Getty permits visitors to photograph Victorious Athlete and other public domain works that it exhibits in its museums. While this work was included in Power & Pathos, however, The Getty forbade visitors from photographing the work. This prohibition accommodated the demand of European museums that had loaned works included in the exhibition, to suppress activity that they feared might dilute the profits generated by their own reproductions and images of these physical objects.

3D technologies hold remarkable potential for the dissemination of increasingly accurate and enhanced information about tangible cultural artifacts. This article argues that those who apply these technologies to these works should not be inhibited by contractual limitations that establish copying limitations beyond those provided under US copyright law.

Three-dimensional cultural artifacts in the public domain, which attract the interest and investment of those working with 3D print technologies, tend to be objects best identified as the cultural legacy of humanity – not that of a particular geographical or political entity. By facilitating the widespread and inexpensive reproduction and distribution of such public domain cultural artifacts, 3D printing technologies, therefore not only promote more democratic access to geographically disperse cultural works, but also advance the dissolution of divisive cultural, political, and geographic boundaries.

 

 

May the fourth be with you…